264 So. 3d 279
Fla. Dist. Ct. App.2019Background
- Plaintiff Sandra Dale Essex underwent hip replacement by Dr. Michael Karr (orthopaedic surgeon) and allegedly sustained a fractured femur during surgery.
- Before filing suit, Essex submitted presuit verified medical opinions (affidavits) from an emergency physician, a radiologist, and a nurse asserting negligence by Dr. Karr.
- Dr. Karr moved to dismiss, arguing the presuit affidavits failed to meet section 766.102(5)(a) because none of the affiants specialized in orthopaedic surgery.
- Essex contended the “same specialty” requirement applied only to trial experts and relied on prior DCA decisions suggesting a less stringent presuit standard.
- The trial court dismissed the complaint with prejudice for failure to submit a presuit expert opinion from a same‑specialty provider; Essex appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a presuit verified medical opinion must come from a provider in the same specialty as the defendant under § 766.102(5)(a) | Essex: presuit screening allows a less stringent expert qualification; same‑specialty needed only for trial testimony | Karr: statute requires same‑specialty expert when defendant is a specialist; presuit opinions must comply | The court held the statute plainly requires a same‑specialty expert for presuit corroboration and affirmed dismissal |
| Whether prior DCA cases (Apostolico, Long) permit non‑specialist presuit affidavits | Essex: Apostolico/Long support relaxed presuit standards | Karr: those cases are distinguishable or not controlling under current statute | The court rejected reliance on those cases: Apostolico interpreted an earlier statute; Long was non‑medical and dicta |
| Whether the “same specialty” statute is unconstitutional (raised for first time on appeal) | Essex: (argued briefly) statute unconstitutional | Karr: procedural challenge not preserved; must comply with Fla. R. Civ. P. 1.071 notice requirements | Court declined to consider constitutionality because issue was not preserved under Rule 1.071 |
| Whether dismissal should have been without prejudice | Essex: dismissal should be without prejudice | Karr: dismissal with prejudice was proper given failure to meet presuit requirements | Court rejected the argument as meritless and unpreserved |
Key Cases Cited
- Weaver v. Myers, 229 So.3d 1118 (Fla. 2017) (describing Florida presuit investigation and corroboration requirements)
- Clare v. Lynch, 220 So.3d 1258 (Fla. 2d DCA 2017) (same‑specialty expert required by § 766.102(5)(a))
- Apostolico v. Orlando Reg’l Health Care Sys., Inc., 871 So.2d 283 (Fla. 5th DCA 2004) (discussing presuit expert standards under prior statute)
- State Farm Mut. Auto. Ins. Co. v. Long, 189 So.3d 335 (Fla. 5th DCA 2016) (non‑medical case; references to presuit expert standards characterized as dicta)
- Faber v. Wrobel, 673 So.2d 871 (Fla. 2d DCA 1995) (earlier discussion of presuit expert qualification)
- Pierrot v. Osceola Mental Health, Inc., 106 So.3d 491 (Fla. 5th DCA 2013) (de novo review of legal question)
- Walker v. Va. Ins. Reciprocal, 842 So.2d 804 (Fla. 2003) (legislative purpose of Chapter 766 and presuit mechanism)